POSTCARD FROM HOLLYWOOD he had no basis for a lawsuit. The legal term for his predicament is "unclean hands," an evocative but uncopyright- able metaphor that was borrowed, one likes to imagine, from Shakespeare's own Lady Macbeth. T HE copyright plaintiffs' legal stee- plechase begins with an attempt to show that the studio had the op- portunity to borrow from their work. This is the one hurdle plaintiffs can usually clear. If they have written a play or a book, then someone connected with the movie could easily have read it. "Or they submit the script to C.A.A., looking for an agent," the Creative Art- ists Agency executive Robert Bookman says wearily. "The agent never sees it, the reader is the lowest person on the totem pole, it's a pass, the agent looks at the last page of the cov- erage, sees 'pass,' and his assistant writes a nice note. Then these plaintiffs say, 'We sent it to C.A.A. That's how Mi- chael Crichton' "-a C.A.A. client- " 'got the script.' " But after proving "access" thoe plain- tiffs must demonstrate that the two works are "substantially similar." This entails stacking up "articulable similari- ties between the plot, themes, dialogue, mood, setting, pace, characters, and se- quence" of the two works. In addition to this "objective" test, the court also applies the "subjective" test: whether a layman would perceive a substantial similarity in the works' "total concept and feel." Mark Dunn's list of a hundred and forty-nine similarities between his play "Frank's Life" and "The Truman Show" includes the pervasive ("Hidden cameras placed all over the sprawling set and un- known to Frank/Truman"; "Frank/Tru- man were having what appears to the TV audience to be a normal sex life with the actor wives, raising various un- spoken moral issues"), the picayune ("A specific volcanic island, within a group of such islands or archipelago, in the southern Pacific Ocean, with double- sounding name (Pago Pago/Fiji) is used as remote place. . . to escape from the effects of the Show"), and the perplex- ing ("The genre of Frank/Truman is a comedy, but with a uniqueness which is difficult to otherwise" categorize"). The courts have held, however, that such lists are "inherently subjective and unreliable," particularly where "the list emphasizes random similarities scat- tered throughout the works." Louis Petrich, a copyright-defense lawyer, says, "You can tell that the plaintiffs are stretching if their lists abstract or trivialize. In the first case, they say, 'When the boy falls into the pit, that's like our scene of the man be- ing chased by the bull, because in both there's "jeopardy.'" And in the second case, they say, 'Each story has a red Chevy.' Sure, but what does the Chevy have to do with the story?" The highest hurdle that plaintiffs face is the fact that most scripts contain a lot of boilerplate that has no particular "au- thor"; it consists of segments that are known legally as scenes à faire. As the court defined them in Alexander v. Haley, a 1978 copyright case against "Roots," scenes à faire are "incidents, characters or settings which are as a practical matter indispensable, or at least standard, in the treatment of a given topic." Thus the court suggested that when one is writing about slavery one would almost perforce include, among other things, "attempted es- capes, flights through the woods pur- sued by baying dogs, the sorrowful or happy singing of slaves." Another court held that a realistic portrait of cops in the South Bronx would necessarily con- tain "drunks, prostitutes, vermin and derelict cars." The notion of scenes à fa ire is capa- cious enough to include the manner in which a reasonable person might de- velop an idea even if another reasonable person had earlier developed the same idea in the same way. For instance, if dinosaurs were reanimated, they'd obvi- ously have to be kept far away from the nearest nursery school. So a writer who claimed that he had banished his veloci- rap tors to a remote island before Mi- chael Crichton did the same in "Jurassic Park" got nowhere in court: the judge ruled that "placing dinosaurs on a pre- historic island far from the mainland amounts to no more than a scene à fa ire in a dinosaur adventure story" The well-known Hollywood lawyer Bert Fields, who is defending Fox Searchlight Pictures in a copyright suit -- ..... (.) -- 'I- > ..... E CI) J: ..... 'I- e I- CI) r:: r:: -- 3: ..... tn CI) ..... r:: e (.) r:: e 55 æ ' > , "' n, :"' : "' :" ." " , . . .... . ':',:,." ;' - -."-.""n _" . ..- ._._ -.:....: . t Ruby Pearson is going nowhere fast. Been there? With a husband in jail, a young son at home, and a stranger on her doorstep, 25 year old Ruby is about to explore the perilous boundaries between desire and betrayal - and the weight of responsibility. 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